Inheritance

[morlandg]

Does anyone know if the Forced Heirship rules apply to we expats in Spain?
The forced heirship rules state that: a) a person with 1 child can only dispose of half of his/her assets by wills or donations; b) if 2 children, of only ¾ of the estate; and, c) if 3 or more children, of only ¼ of the estate.
I have had conflicting advice -
1.these rules DO apply and
2.others say that they only apply to spanish citizens - British inheritance laws and wills apply to british citizens.
A definitive answer to this vexed question would certainly be welcomed by me but maybe to a lot of other expats also!

[Pesky Wesky]

Originally Posted by morlandg

Does anyone know if the Forced Heirship rules apply to we expats in Spain?
The forced heirship rules state that: a) a person with 1 child can only dispose of half of his/her assets by wills or donations; b) if 2 children, of only ¾ of the estate; and, c) if 3 or more children, of only ¼ of the estate.
I have had conflicting advice -
1.these rules DO apply and
2.others say that they only apply to spanish citizens - British inheritance laws and wills apply to british citizens.
A definitive answer to this vexed question would certainly be welcomed by me but maybe to a lot of other expats also!

Hmmmm, interesting. I'm in the letter a category above, although I'm married to a Spaniard, but I'm not sure what can only dispose of half of his/her assets by wills or donations means. Does that mean that you have to leave 50% to your child and can leave the other 50% to others if you want to??

[morlandg]

Originally Posted by Pesky Wesky

Hmmmm, interesting. I'm in the letter a category above, although I'm married to a Spaniard, but I'm not sure what can only dispose of half of his/her assets by wills or donations means. Does that mean that you have to leave 50% to your child and can leave the other 50% to others if you want to??

Yes - exactly!

[Pesky Wesky]

Originally Posted by morlandg

Yes - exactly!

OK, now let's see what info others can give us

[Xose]

Originally Posted by morlandg

Does anyone know if the Forced Heirship rules apply to we expats in Spain?
The forced heirship rules state that: a) a person with 1 child can only dispose of half of his/her assets by wills or donations; b) if 2 children, of only ¾ of the estate; and, c) if 3 or more children, of only ¼ of the estate.
I have had conflicting advice -
1.these rules DO apply and
2.others say that they only apply to spanish citizens - British inheritance laws and wills apply to british citizens.
A definitive answer to this vexed question would certainly be welcomed by me but maybe to a lot of other expats also!

Hi Morland,
My understanding is simply that you can't disinherit the kids - however, I have also heard that the legal "minimum" to meet that rule is small. Obviously these amounts need to be quantified by either talking with a lawyer or a notaria, the latter being a place where wills are officially written and thus, can guide you in the cans and can'ts but obviously perhaps not as well as a lawyer in the shoulds (appeals process, likely to succeed in an appeal etc).

The basics though, with no conflict are fairly straight forward... in my mind.

If both partners are alive, then there are no inheritence issues. They can sell up and give the cash away, spend it, whatever. There is no "Kids inheritence" until they inherit.... hope this makes sense.

If one partner has died, then their assets are split. If there is one child, then half of their half belongs to that child under inheritence.... it doesn't all go to the surviving partner as with the UK. Third if two children etc. i.e. an even split between partner and children.

The only way the surviving partner can sell the house and do whatever they want with the total estate, is if the kids do a power of attorney stating that they leave the remaining partner to do as they wish with the estate. Their inheritence will then come in whole from that partner. It wouldn't be the first time a remaining partner is forced to sell their home to give the kids (who they don't get on with) their rightful half.

Wills are of major importance in Spain because of such things. Whilst a partner can't leave everything to another and disinherit the kids, they can leave "surfruto" of the house for life - meaning that half the house might be the kids' but the remaining partner has the enjoyment of all the house whilst they live. The kids then have to wait.

You really need to get to a Notaria or Lawyer for a quick fact finding mission and then, based on options available, do a will to cover the Spain assets.

Xose

[morlandg]

Originally Posted by Xose

Hi Morland,
My understanding is simply that you can't disinherit the kids - however, I have also heard that the legal "minimum" to meet that rule is small. Obviously these amounts need to be quantified by either talking with a lawyer or a notaria, the latter being a place where wills are officially written and thus, can guide you in the cans and can'ts but obviously perhaps not as well as a lawyer in the shoulds (appeals process, likely to succeed in an appeal etc).

The basics though, with no conflict are fairly straight forward... in my mind.

If both partners are alive, then there are no inheritence issues. They can sell up and give the cash away, spend it, whatever. There is no "Kids inheritence" until they inherit.... hope this makes sense.

If one partner has died, then their assets are split. If there is one child, then half of their half belongs to that child under inheritence.... it doesn't all go to the surviving partner as with the UK. Third if two children etc. i.e. an even split between partner and children.

The only way the surviving partner can sell the house and do whatever they want with the total estate, is if the kids do a power of attorney stating that they leave the remaining partner to do as they wish with the estate. Their inheritence will then come in whole from that partner. It wouldn't be the first time a remaining partner is forced to sell their home to give the kids (who they don't get on with) their rightful half.

Wills are of major importance in Spain because of such things. Whilst a partner can't leave everything to another and disinherit the kids, they can leave "surfruto" of the house for life - meaning that half the house might be the kids' but the remaining partner has the enjoyment of all the house whilst they live. The kids then have to wait.

You really need to get to a Notaria or Lawyer for a quick fact finding mission and then, based on options available, do a will to cover the Spain assets.

Xose

Hi Xose
Thanks for your reply. So Forced Heirship DOES apply......
I cannot find a translation for the word "surfruto". I presume this is a term that is inserted into each partner's wills.
Graham

[Bevdeforges]

Originally Posted by morlandg

Hi Xose
Thanks for your reply. So Forced Heirship DOES apply......
I cannot find a translation for the word "surfruto". I presume this is a term that is inserted into each partner's wills.
Graham

The term in French is "usufruit" which I've seen translated as "usufruct" - though I don't think I've ever seen that word used in English. It basically means that ownership is split into the thing itself, and the benefits of the thing - meaning that while the kids may "own" the house (or whatever), the surviving parent gets the use of the property (or any income from renting it out).

Normally, inheritance law of the country in which the decedent was living at the time of their death takes precedence. However, for real property (land and buildings), it's the inheritance law of the country in which the property is located. So, the house in Spain is subject to Spanish inheritance law, while the house in the UK passes according to UK law (or a UK will).
Cheers,
Bev

[Pesky Wesky]

Originally Posted by Xose

Hi Morland,
My understanding is simply that you can't disinherit the kids - however, I have also heard that the legal "minimum" to meet that rule is small. Obviously these amounts need to be quantified by either talking with a lawyer or a notaria, the latter being a place where wills are officially written and thus, can guide you in the cans and can'ts but obviously perhaps not as well as a lawyer in the shoulds (appeals process, likely to succeed in an appeal etc).

The basics though, with no conflict are fairly straight forward... in my mind.

If both partners are alive, then there are no inheritence issues. They can sell up and give the cash away, spend it, whatever. There is no "Kids inheritence" until they inherit.... hope this makes sense.

If one partner has died, then their assets are split. If there is one child, then half of their half belongs to that child under inheritence.... it doesn't all go to the surviving partner as with the UK. Third if two children etc. i.e. an even split between partner and children.

The only way the surviving partner can sell the house and do whatever they want with the total estate, is if the kids do a power of attorney stating that they leave the remaining partner to do as they wish with the estate. Their inheritence will then come in whole from that partner. It wouldn't be the first time a remaining partner is forced to sell their home to give the kids (who they don't get on with) their rightful half.

Wills are of major importance in Spain because of such things. Whilst a partner can't leave everything to another and disinherit the kids, they can leave "surfruto" of the house for life - meaning that half the house might be the kids' but the remaining partner has the enjoyment of all the house whilst they live. The kids then have to wait.

You really need to get to a Notaria or Lawyer for a quick fact finding mission and then, based on options available, do a will to cover the Spain assets.

Xose

Thanks for the info xose.
I wasn't thinking about disinheriting my daughter by the way as I get on with her allright at the moment, and she's a teenager so we're doing pretty well!!

[Hombre]

Originally Posted by Bevdeforges

The term in French is "usufruit" which I've seen translated as "usufruct" - though I don't think I've ever seen that word used in English. It basically means that ownership is split into the thing itself, and the benefits of the thing - meaning that while the kids may "own" the house (or whatever), the surviving parent gets the use of the property (or any income from renting it out).

Normally, inheritance law of the country in which the decedent was living at the time of their death takes precedence. However, for real property (land and buildings), it's the inheritance law of the country in which the property is located. So, the house in Spain is subject to Spanish inheritance law, while the house in the UK passes according to UK law (or a UK will).
Cheers,
Bev

Hmmmm... I took out a will many years ago in the UK. Basically, it was a very simple will, leaving any owned property and all cash assets to my wife...and in the event of her death, to be passed on to our children, divided equally. Somewhere down the line I lost the original, but I have a carbon copy. 2 years ago I took the copy to a notario. He read it carefully. I asked was this will valid in Spain or did I need to take out another one. His answer was an emphatic "no".
Absolutely no need as the copy was quite legal and would be legally binding in Spain.

[Xose]

Originally Posted by Hombre

Hmmmm... I took out a will many years ago in the UK. Basically, it was a very simple will, leaving any owned property and all cash assets to my wife...and in the event of her death, to be passed on to our children, divided equally. Somewhere down the line I lost the original, but I have a carbon copy. 2 years ago I took the copy to a notario. He read it carefully. I asked was this will valid in Spain or did I need to take out another one. His answer was an emphatic "no".
Absolutely no need as the copy was quite legal and would be legally binding in Spain.

Hola Hombre,
Just to make sure that he gave you the right advice. In your position I would pose him a pointed question, and see if the answer remains the same.

So, I don't have a Spanish will. I only have the UK will leaving everything to my wife and then the children AFTER she dies.
Once my children are "adult", can my wife do as she pleases with what I have willed as purely HER house?

Can she do as she pleases before they are of age?

Would be interesting if he said yes to both (or any) of the above. It would certainly get me down to my notario tout de suite! So far as I am concerned, without the power of attourney from any surviving ADULT child, the above UK type scenario is not possible under Spanish inheritence law. Not possible at all whilst they are minors.

Xose